DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

MAHKAMAH PERSEKUTUAN RAYUAN JENAYAH

 NO: 05-4-2000(W)

ANTARA

DATO’ SERI ANWAR BIN IBRAHIM               …      PERAYU

                                                        DAN

PENDAKWA RAYA                                           …      RESPONDEN

(Dalam perkara Mahkamah Rayuan Jenayah No: W-05-25-1999 & W-05-27-1999

 

Antara

 

Dato’ Seri Anwar bin Ibrahim                             …      Perayu

 

                                                                     Dan

 

Pendakwa Raya                                                  ….     Responden)

 

 

CORAM:   ABDUL MALEK AHMAD, PCA

                                      SITI NORMA YAAKOB, FCJ

                                      ALAUDDIN MOHD SHERIFF, FCJ

 

JUDGMENT OF ABDUL MALEK AHMAD,

 PRESIDENT OF THE COURT OF APPEAL

Heightened by the release of the applicant by this court on sodomy charges some four days before we heard these applications, the intense speculation pertaining to the outcome of the four motions before us had certainly generated a certain amount of undue interest and unwanted publicity.  This bad timing certainly would not have occurred if the first of the four motions filed on 9th August 2002, applying to set aside the convictions and sentences of the applicant on corruption charges, had been disposed of much earlier considering the lapse of twenty five months. 

2.                The first motion at enclosure 80(a) filed on 9th August 2002 was for an order that the court invokes its inherent powers under rule 137 of the Rules of the Federal Court 1995 (hereinafter “the RFC”) to set aside the convictions and sentences of the applicant that were confirmed and upheld by this court on 10th July 2002 or make such further or other orders it deemed fit and proper in the interests of justice.

3.                The second motion at enclosure 89(a) filed on 10th March 2003 was for an order that this court again invoke its inherent powers under rule 137 of the RFC to allow fresh/additional evidence affecting the trial to be adduced as such evidence was not available during the trial or make such further or other orders it deemed fit and proper in the interests of justice.

4.                The third motion at enclosure 97(a) filed on 14th March 2003 was for an order that the applicant be allowed leave to rely on five additional grounds stated therein.

5.                The fourth motion at enclosure 124(a), filed four days before the hearing, was also for an order that the applicant be allowed leave to rely on another additional ground which was that section 94(2), including the proviso thereto, of the Courts of Judicature Act 1964 (hereinafter “the CJA”) is unconstitutional and void and of no effect as it impinges on the judicial independence of the individual judges of the Federal Court.

6.                I shall only deal with the jurisdiction point while the four motions will be dealt with in detail by my learned sister Siti Norma Yaakob FCJ and my learned brother Alauddin Mohd Sheriff FCJ in their separate judgments.

7.                It is pertinent at this point to reproduce rule 137 of the RFC which reads:

 

“137.     For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”.

 

8.                At the commencement of the proceedings, the learned Attorney General for the respondent and Karpal Singh for the applicant told the Court that both parties had agreed that arguments would begin with the preliminary objection by the respondent on the first motion.  On hindsight and having heard their submissions, it was our finding that the preliminary objection was quite unnecessary as it could have easily been argued as part of the submissions on the motions themselves.

9.                The learned Attorney General started off by stating that rule 137 of the RFC is ultra vires the CJA and the Federal Constitution (hereinafter “the FC”).  He added that this is not the first criminal review as on 10th June 2003 this court (Haidar Mohd Noor CJM, Steve Shim CJSS and Siti Norma Yaakob FCJ) had in Tunde Apatira & 2 Ors. v Public Prosecutor in Federal Court Criminal Appeal No. 05-6-1997(P) dismissed a similar application.

10.              Karpal Singh for the applicant had immediately interjected to say that there was no written judgment in that application and that this court did not in any way state that rule 137 of the RFC did not apply.  The relevant order, he said, only stated that the application was dismissed.  Further, the relevant newspaper report only mentioned that the court had to dismiss the application based on the fact that there has been a final decision relating to the conviction and sentence.

11.              The learned Attorney General continued by saying that rule 137 of the RFC was created pursuant to section 17 of the CJA which must be read together with section 16 thereof.  Section 16 of the CJA, he said, provided for the making of rules of court only for the purpose of prescribing the practice and procedure where the court has jurisdiction.

12.              He added that there is a distinction between “jurisdiction” and “power”.  The former, he continued, denotes the types of subject matter which the court may deal with and in relation to which it may exercise its powers.  He said that the court cannot exercise powers in matters over which it has no jurisdiction.  He stressed that the court must have jurisdiction before it can exercise its powers.

13.              He then referred to Clause (2) of Article 121 of the FC which reads:

 

“(2)    There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) and shall have its principal registry in Kuala Lumpur, and the Federal Court shall have the following jurisdiction, that is to say –

(a)     jurisdiction to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof;

 

(b)     such original or consultative jurisdiction as is specified in Articles 128 and 130; and

 

(c)     such other jurisdiction as may be conferred by or under federal law.”.

    

 

14.              Article 121 of the FC, he argued, relates to the judicial power of the Federation.  The learned Attorney General also cited two Articles in the FC which deal with the jurisdiction of this court and they are Article 128 and Article 130 of the FC.

15.              Reference was made to Auto Dunia Sdn Bhd v Wong Sai Fatt & 3 Ors (1995) 3 CLJ 485 where this court (Lamin Mohd. Yunus PCA, Edgar Joseph Jr. and Wan Adnan Ismail FCJJ), at the conclusion of arguments on the preliminary objection taken by learned counsel for the respondents, held that this court had no jurisdiction to entertain the appellant’s application for leave to appeal.

16.              Unfortunately, we felt that this authority was off its mark as there the High Court gave judgment for less than RM250,000 and consequently the Court of Appeal refused to grant leave to appeal under section 68(1)(a) of the CJA.  The finding of this court was more in the context of whether an appeal lies to this court from such a refusal of the Court of Appeal.

17.              The learned Attorney General pointed out that in India, the powers to review a judgment is enacted in the Indian Constitution itself at Article 137 which states:

 

“137.  Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”.

 

 

18.              In consequence, he argued that there is a finality to appeals as there is a Pardons Board and we cannot allow matters to be reopened.  He emphasised that rule 137 of the RFC is not a jurisdiction provision as it is made pursuant to section 17 of the CJA.

19.              The Rules Committee, he added, cannot draft rules on this matter.  The argument that sections 16 and 17 of the CJA make provision for the Rules Committee to make rules to confer jurisdiction to this court is contrary to the enshrined doctrine of separation of powers which expressly provide that legislative powers conferring jurisdiction to the courts are to be exercised by its elected legislature.

20.              Karpal Singh submitted that rule 137 of the RFC is subsidiary legislation and must be construed as such in essence and in substance.  He said that the learned Attorney General may have a point in saying that being subsidiary legislation, it cannot confer jurisdiction and power but it was his contention that inherent powers are at all levels and it was unfortunate that in the Tunde Apatira application, the opportunity did not arise to address the matter at length.

21.              He argued that it is inherent jurisdiction which confers the power and not rule 137 of the RFC which is superfluous.  In criminal matters, he added, the courts should be more inclined to use its inherent jurisdiction.

22.              Learned counsel referred to Chia Yan Teck & Anor v Ng Swee Kiat (2001) 4 MLJ 1 where this court (Mohd Dzaiddin CJ, Steve Shim CJSS and Haidar Mohd Noor FCJ) held that rule 137 of the RFC clearly gives the Federal Court the inherent power to hear any application or to make any order as may be necessary to prevent injustice although the issue of reopening or reviewing the court’s decision in that case did not arise.

23.              The finding in that case as regards the issue of reopening or reviewing the court’s decision not arising has to be viewed in the context of the circumstances of that application.  The appeal in the Federal Court there was heard on 3rd August 2000 before Eusoff Chin CJ, Wan Adnan Ismail CJM and Zakaria Yatim FCJ but judgment was reserved.  On 19th December 2000, the parties’ solicitors were informed that judgment would be pronounced on 22nd December 2000.  This, the deputy registrar did, allowing the appeal with costs.

24.              The contention of the respondents there was that the judgment pronounced on 22nd December 2000 was a nullity as two of the three judges on the panel had retired as judges before that date and relied on rule 63 of the RFC dealing with pronouncement of judgment.  Learned counsel for the appellants, on the other hand, relied on section 78(1) of the CJA pertaining to, as the marginal note states, “continuation of proceedings notwithstanding absence of judge”.

25.              The relevant excerpt of the judgment states:

 

          “In my opinion, there is a clear distinction between the giving of judgment under s 78 of the Act and the pronouncement of the said judgment in r 63 of the Rules.  Section 78 of the Act provides that the judgment or reserved judgment shall be given by the remaining judges of the court, not being less than two, and in which case, the court shall be deemed to be duly constituted.  This begs the question: when is the judgment of the remaining judges given?  The section does not provide the manner in which the time from when the judgment is to take effect.  Rule 63 of the Rules seems to provide the answer.  Clearly, r 63 of the Rules provides the mode how a judgment is to be delivered, which is, by pronouncement in open court, and under para (2) of r 63 of the Rules, it may be read by a judge of the court or by the registrar.  It seems that this was also the practice of the House of Lords where the pronouncement is made in open court in a formal way (W’Field Fr Co v Steel Construction Co at p 686).  It must not be forgotten that the Rules have statutory force and are not mere rules of practice.  See Pacific Centre Sdn Bhd v United Engineers (M) Sdn Bhd [1984] 2 MLJ 143.”.

 

 

26.              On the question of jurisdiction, which interestingly enough the submissions of learned counsel for the appellants there are similar to that of the learned Attorney General here, this court said:

 

          “Dato’ Dr Das also submitted that the Federal Court has no jurisdiction to reopen or rehear a case or review its own decision.  Counsel relied on art 128(3) of the Federal Constitution, which states ‘the jurisdiction of the Federal Court to determine appeals from the Court of Appeal, a High Court or a judge thereof shall be such as may be provided by federal law.’  The Court of Judicature Act 1964 is such a law.  He also referred to Lye Thai Sang & Anor v Faber Merlin (M) Sdn Bhd & Ors [1986] 1 MLJ 166, where Abdul Hamid CJ (Malaya), (as he then was) held as follows (at p 168):

 

Where, therefore, a final decision has been delivered, an appeal is in effect heard and disposed of.  In other words, it is brought to a final conclusion.  And that being the case, the Supreme Court has no power to re-open, rehear and re-examine its decision for whatever purpose.  The only exception where there can be a re-hearing is only to the extent provided by s 42, in particular sub-s (3) of s 42.  The other exception is as provided under s 44 sub-s (3) to the effect that every order such as that envisaged in sub-s (1) of s 44 may be discharged or varied by the full court.

 

Counsel further submitted that r 137 of the Rules  does not confer jurisdiction or power on the Federal Court.

 

          In reply, Mr Cecil Abraham submitted that in the instant case, the judgment was not given in accordance with the law, ie under s 78 of the Act and r 63 of the Rules.  This court has the inherent power to determine the issue in order to prevent injustice to the respondents.

 

          With respect, I disagree with Dato’ Dr Das that this court has no jurisdiction to hear this application.  Rule 137 of the Rules clearly gives us the inherent powers to hear any application or to make any order as may be necessary to prevent injustice.  The issue of reopening or reviewing our own decision in the instant case therefore does not arise.

 

Conclusion

 

For the above reasons, the application of the respondents for an order that the judgment dated 22 December 2000 be set aside, is allowed with costs, because on that date, the court was not duly constituted as there was only one remaining judge of the court.  I also order that the application of the appellant (to) set aside the ex parte order dated 4 January 2001, allowing the stay of execution be dismissed with costs.  In the result, the appeal shall be reheard by a newly constituted panel of the Federal Court.”.

 

 

27.              Despite concluding that the issue of reopening or reviewing its own decision did not arise, it ordered that the appeal be reheard by a newly constituted panel of the Federal Court.  It has, therefore, to be read with the fact that nothing was being reopened or reviewed as the first panel was not duly constituted but all the same, rule 137 of the RFC had been applied to overcome the problem.

28.              Learned counsel next cited MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun (2002) 2 MLJ 673 (Steve Shim CJSS, Siti Norma Yaakob and Haidar Mohd Noor FCJJ) where Steve Shim CJSS dissented only on the point of consent under section 78 of the CJA.  The original appeal in that case was heard by Eusoff Chin CJ, Wan Adnan Ismail CJM and Chong Siew Fai CJSS on 12th and 13th January 1998.  The Senior Assistant Registrar read out the reserved judgment on 12th July 2002 ten days after Chong Siew Fai CJSS had retired.  Following Chia Yan Teck’s case, and because no consent had been obtained by the parties under section 78 of the CJA, the appeal was ordered to be reheard before another panel of this court.

29.              In that application, Steve Shim CJSS said at pages 684 and 685 of the report as follows:

 

                   “Inherent jurisdiction

 

Let me say without more that whilst I agree with the applicant’s counsel’s contention that the Federal Court has inherent jurisdiction under the common law to review its previous decision, I am however unable to accept his stand that Lye Thai Sang was decided per incuriam.  I agree entirely with the view expressed by the Supreme Court in Lye Thai Sang that s 69(4) of the CJA could not be construed to confer an unlimited power on the Supreme Court to review an earlier decision in an appeal which had already been heard and disposed of and therefore, in that context, the Supreme Court had no power to reopen, rehear and reexamine its previous decision for whatever purpose.  Quite clearly, that observation was made in the context of the proper construction to be placed on s 69(4) of the CJA.  But that cannot be read to mean that the Supreme Court had been deprived of its inherent jurisdiction derived under the common law by virtue of s 3(1)(a) of the Civil Law Act 1956, read with art 121(2) of the Constitution.  This is the common law exception quite apart from the statutory exceptions referred to in Lye Thai Sang.  In any event, the Federal Court has now been conferred with inherent power under r 137 of the Rules of the Federal Court 1995.  This had also been reiterated very recently by the Federal Court in the case of Chia Yan Teck & Anor v Ng Swee Kiat & Anor [2001] 4 MLJ 1 wherein Mohamed Dzaiddin Chief Justice said at p 10:

 

Rule 137 of the Rules clearly gives us the inherent powers to hear any application or to make any order as may be necessary to prevent injustice.

 

For the reasons stated, I hold the view that the Federal Court does have the inherent jurisdiction and power which can be invoked in limited circumstances to reopen, rehear and reexamine its previous judgment, decision or order which has been obtained by fraud or suppression of material evidence so as to prevent injustice or an abuse of the process of the court.  In the circumstances, the preliminary objection raised by counsel for the respondent fails.”.

 

Just for the record, the learned judge had in fact expressed the same view three months earlier in Megat Najmuddin bin Dato’ Seri Dr Megat Khas v Bank Bumiputra (M) Sdn Bhd (2002) 1 MLJ 385 sitting with Wan Adnan Ismail CJM, Abdul Malek Ahmad, Ahmad Fairuz and Mohtar Abdullah FCJJ.

30.              Learned counsel also referred to the case of Taylor and another v Lawrence and another (2002) 1 All ER 353 where it was held by a five member panel of the Court of Appeal in England that it had a residual jurisdiction to reopen an appeal which it had already determined in order to avoid real injustice in exceptional circumstances.  The court had implicit powers to do that which was necessary to achieve the dual objectives of an appellate court, namely to correct wrong decisions so as to ensure justice between the litigants involved, and to ensure public confidence in the administration of justice, not only by remedying wrong decisions, but also by clarifying and developing the law and setting precedents.  A court had to have such powers in order to enforce its rules of practice, suppress any abuses of its process and defeat any attempted thwarting of its processes.  The residual jurisdiction to reopen appeals was linked to a discretion which enabled the Court of Appeal to confine its use to the cases in which it was appropriate for the jurisdiction to be exercised.  There was a tension between a court having such a residual jurisdiction and the need to have finality in litigation, so that it was necessary to have a procedure which would ensure that proceedings would only be reopened when there was a real requirement for that to happen.  The need to maintain confidence in the administration of justice made it imperative that there should be a remedy in a case where bias had been established, and that might justify the Court of Appeal in taking the exceptional course of reopening proceedings which it had already heard and determined.  It should, however, be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy.  The effect of reopening the appeal on others and the extent to which the complaining party was the author of his own misfortune would also be relevant considerations.  Where the alternative remedy would be an appeal to the House of Lords, the Court of Appeal would only give permission to reopen an appeal which it had already determined if it were satisfied that the House of Lords would not give permission to appeal.

31.              Some four months later, in Seray-Wurie v Hackney London Borough Council (2002) 3 All ER 448, a three member panel of the Court of Appeal in England held the same view adding that the court should exercise strong control over any such application, so as to protect those who were entitled reasonably to believe that the litigation was already at an end.

32.              R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) (1999) 1 All ER 577 involved the extradition sought by the government of Spain of the former head of state of Chile.  Two provisional warrants for his arrest were issued by a metropolitan stipendiary magistrate.  The applicant successfully applied to the Divisional Court to quash those warrants, but the quashing of the second warrant was stayed to enable an appeal to the House of Lords on the question of the proper interpretation and scope of the immunity of a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed whilst he was head of state.  Amnesty International was granted leave to intervene in the proceedings.  On 25 November 1998, the appeal was allowed by a majority of three to two and the second warrant was restored.  Subsequently, the applicant discovered that one of the Law Lords in the majority was a director and chairperson of Amnesty International Charity Ltd, which had been incorporated to carry out Amnesty International’s charitable purposes and petitioned the House to set aside the order of 25 November 1998.

33.              It was held by the House of Lords that the principle that a judge was automatically disqualified from hearing a matter in his own cause was not restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties.  That did not mean that judges could not sit on cases concerning charities in whose work they were involved, and judges would normally be concerned to recuse themselves or disclose the position to the parties only where they had an active role as trustee or director of a charity which was closely allied to and acting with a party to the litigation.  In the instant case, the facts were exceptional in that Amnesty International was a party to the appeal, it had been joined in order to argue for a particular result and the Law Lord was a director of a charity closely allied to Amnesty International and sharing its objects.  Accordingly, he was automatically disqualified from hearing the appeal.  On that score, the petition was granted and the matter was referred to another committee of the House for rehearing.

34.              We also need to mention the Court of Appeal case of Tai Chai Yu v The Chief Registrar of the Federal Court (1998) 2 MLJ 474 (Gopal Sri Ram, Siti Norma Yaakob and Ahmad Fairuz JJCA) where the respondent, the registrar, rejected the petition filed by the appellant, a solicitor, purportedly invoking the original or consultative or inherent jurisdiction of the Federal Court for the purpose of reviewing a decision of that court given earlier against the appellant’s client.  The appellant’s application for leave to apply for an order of certiorari against the registrar was refused by the judge on the ground that the application was frivolous.  The appellant appealed.  It was held, in dismissing the appeal, that it is trite law that the Federal Court has no jurisdiction of any sort to reopen and review its decision in a case, neither the FC nor the CJA confer any such jurisdiction upon the Federal Court and that a final decision of the Federal Court, once pronounced, is binding upon the parties thereto and its correctness may only be questioned in a subsequent case where the identical point of law arises for decision.  Furthermore, the court took into consideration that the appellant was not the person aggrieved by the decision of the registrar.  It was his client’s petition that the registrar rejected.  The appellant was a stranger to the complaint and, therefore, lacked standing to challenge the decision in question.  This is the only case which we have found to follow Lye Thai Sang’s case but apart from it being only at the Court of Appeal level, by which we are not bound, we should add that the court had taken note that the appellant there was not the person aggrieved by the decision of the respondent.  As for Lye Thai Sang (supra), it must be emphasised here that the only provision considered there was section 69 of the CJA while rule 137 of the RFC was never considered.

35.              Since then, there has been a number of other applications dealt with by this court under rule 137 of the RFC including Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd (Federal Court Civil Appeal No: 08-32-1996(W), Adorna Properties Sdn Bhd v Kobchai Sosothikul (Federal Court Civil Appeal No: 02-14-1997(P) and Wong Siew Choong Sdn Bhd v Anvest Corporation Sdn Bhd (Federal Court Civil Appeal No: 02-5-2003(W).

36.              We now revert to rule 137 of the RFC.  Since it is made under section 17 of the CJA, it is certainly subsidiary legislation.  We have cited the passage in Chia Yan Teck (supra) where this court, in relying on rule 63 of the RFC, had said that the RFC have statutory force and are not mere rules of practice relying on Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd (supra). 

37.              Similarly, in Dato’ Mohamed Hashim Shamsuddin v Attorney-General, Hongkong (1986) 2 MLJ 112 (Salleh Abas LP, Seah and Abdoolcader SCJJ), the majority view was that the statutory source and enabling provision for Order 66 of the Rules of the High Court 1980 is section 16(1) of the CJA.  The Supreme Court also held that Order 66 of the said Rules is valid and properly enacted in relation to both civil and criminal proceedings and therefore the order made in that case is intra vires.  Reading the written submissions of the learned Attorney General on the preliminary objection, we note that a substantive portion therein is based on the dissenting judgment of Seah SCJ in that case with which we are not inclined to agree.

38.              It is of no consequence to us that in India, the relevant power to review is a constitutional provision read with Order 40 of the Supreme Court Rules 1966.  The principle remains the same.  As stated in the AIR Commentaries to the Constitution of India Volume III 2nd (1971) Edition at page 226:

 

“The Federal Court would exercise its power of review for the purpose of rectifying a mistake which had crept in by misprision in embodying the judgments, or had been introduced through inadvertence in the details of judgments.  It could also supply manifest defects in order to enable the decrees to be enforced or add explanatory matter or reconcile inconsistencies.  The indulgence by way of review was granted mainly owing to the natural desire to prevent irremediable injustice being done by a Court of last resort as where, by some accident, without any blame, a party had not been heard and an order had been inadvertently made as if the party had been heard.  But in no case could a rehearing be allowed upon the merits or even on the ground that new matter had been discovered which if it had been produced at the hearing of the appeal might materially have affected the judgment of the Court.”.

 

 

39.              The learned Attorney General agrees that rule 137 is subsidiary legislation which has been defined in the Interpretation and General Clauses Ordinance 1948, which is the law to be applied for the interpretation of the FC, as any Order in Council, proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect.

40.              He submitted that subsidiary legislation must not be inconsistent with, or contrary to, the provisions of the parent Act. Nowhere does the CJA make provision for conferring jurisdiction or power to review, rehear or reopen an appeal which has been disposed of.  And this follows that the rules made under the parent Act cannot confer such jurisdiction or power.  Section 16 of the CJA provides that the rules made would be confined only to matters of procedure and practice.  Therefore, rule 137 of the RFC which was made pursuant to section 17 read together with section 16 of the CJA must be read with the other provisions of the RFC and should be construed within the parameters set out under section 16 of the CJA.  To construe it as conferring or creating additional jurisdiction would be ultra vires the CJA itself and also the FC.  The RFC, he added, must also not be in conflict with the intention of the legislature in enacting the substantive legislation namely sections 16 and 17 of the CJA.

41.              He went on to say that the RFC, made pursuant to section 17 of the CJA, only prescribes the practice and procedure to be followed but not granting jurisdiction to the Federal Court citing Attorney-General v Sillem (1864) 11 E.R. 1200, British South Africa Co. v Companhia de Mocambique (1893) A.C. 602 and Keshodass Wadhumal Advani v Syed Murtaza Ali Khan AIR 1952 All 318 on point and concluding that rule 137 of the RFC is ultra vires the FC.

42.              We certainly do not agree with the learned Attorney General on this as section 16 of the CJA begins with “Rules of court may be made for the following purposes”.  And the relevant paragraph (a) states:

 

“(a)    for regulating and prescribing the procedure (including the method of pleading) and the practice to be followed in the High Court, [the Court of Appeal and the Federal Court] in all causes and matters whatsoever in or with respect to which those Courts have for the first time being jurisdiction (including the procedure and practice to be followed in the registries of those Courts), and any matters incidental to or relating to any such procedure or practice, including (but without prejudice to the generality of the foregoing provision) the manner in which, and the time within which, any applications which are to be made to a High Court [to the Court of Appeal or to the Federal Court] shall be made.”.

 

 

43.              It cannot be said that we do not have the jurisdiction, as this has been repeatedly decided in a number of authorities before this, to hear an application brought before us under rule 137 of the RFC where it is found necessary to prevent injustice or to prevent an abuse of the process of the Court.

44.              We also take note that Clause 2(c) of Article 121 of the FC provides “such other jurisdiction as may be conferred by or under Federal law”.  Consequently paragraph (b) of the definition of “Federal law” at Clause (2) of Article 160 of the FC only applies to any Act of Parliament.  The learned Attorney General says this does not include the RFC but we beg to differ as the RFC is the subsidiary legislation of the relevant Act of Parliament namely the CJA.  And looking at both section 16 and section 17 of the CJA, we hold that rules can be made for the practice and procedure where the courts have jurisdiction.  The long line of cases certainly seem to support our thinking that we have the jurisdiction and the power to reopen and review any matter already decided by this court if there is any allegation of injustice or abuse of the process of the Court.        

45.              Having considered the arguments and the authorities, we were of the view, which is unanimous, that we have the jurisdiction to deal with all the four motions filed as it is our finding that rule 137 of the RFC has legislative effect.  Accordingly, on 7th September 2004, we had overruled the preliminary objection by the respondent and proceeded to hear all the four motions.

46.              My learned sister Siti Norma Yaakob FCJ and my learned brother Alauddin Mohd Sheriff FCJ have seen this judgment in draft and have expressed their agreement with it.  Similarly, as regards the four motions, I have had the advantage of reading their respective judgments and totally agree with the reasoning and conclusions therein.

Dated 15th September 2004.

 

 

                                                                   (ABDUL MALEK AHMAD)

                                                                              PRESIDENT

                                                                OF THE COURT OF APPEAL

                                                                              MALAYSIA

 

 

 

Dates of Hearing:         6th, 7th and 8th September 2004

 

Date of Decision:                   15th September 2004

 

 

Counsel:

 

Karpal Singh (S.N. Nair, Gobind Singh Deo, Kamar Ainiah Kamaruzaman, Pawancheek Marican, Zulkifli Noordin, Saiful Izham Ramli, Christopher Fernando and Marisa Regina with him) for the appellant

(Solicitors:  M/s Karpal Singh & Co.)

 

Tan Sri Abdul Gani Patail, Attorney General (Dato’ Mohd Yusof Hj Zainal Abiden, Tun Abdul Majid Tun Hamzah and Ahmad Fairuz Zainol Abidin, Senior Federal Counsel with him) for the respondent

Attorney General Chambers

 

Vernon Ong – watching brief for Bar Council